~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT)

Monthly Archives: September 2014

For the past two years the topic of intellectual property (IP) issues in social media has been dear to this blogger. However it is clear that the emerging legal issues relating to social media are much wider than IP law concerns and impact numerous other branches of law including but not limited to criminal law, constitutional law, law of evidence, defamation law (which is an integral part of media law), consumer protection law, employment and labour laws, competition law, administrative law, education law and ICT law among others.

This holistic approach to the study of the intersections between social media and the law is what this blogger aims to accomplish in collaboration with his host institution @StrathCIPIT. Through the CIPIT blog, this blogger will begin focusing on the various legal issues brought about by social media and other forms of new media. So far, we have already discussed here and here social media in relation to the laws of succession and defamation respectively.

In this connection, this blogger is eager to read a recent book authored by two female South African attorneys, Emma Sadleir and Tamsyn de Beer which deals with the myriad of legal issues that arise in the context of social media (featured in the video at the header of this blogpost). Here is an excerpt from this new book titled: “Don’t Film Yourself Having Sex and Other Legal Advice For the Age of Social Media”:-

“Picture the scene: you finish reading this book and, feeling inspired to exercise a bit of online reputation management, you google your name. Up pops a link to your Facebook page, your Twitter account, and your LinkedIn profile.

You feel chuffed, because you’ve never uploaded anything remotely objectionable and look super professional and sober in your profile picture. You self-five yourself for being responsible and awesome.

Your parents would be so proud.

But then you see that the next four pages of the Google search results are filled with links to a video of you and your ex-boyfriend having sex, all over porn-sharing sites, with your full name and the name of your employer tagged.

You never consented to being filmed, and you are (obviously) mortified. Desperate to not have the matter revealed to the world in public court documents, your only option to escape this nightmare is to change your name.

We wish that this were some horror story that we made up to scare you, but sadly, it’s not. This happened. In South Africa.”

The “revenge porn” case highlighted in the above excerpt appears to be at the core of this book which is dedicated, “To Miss K. The law failed you.” However a recent article in the Washington Post (available here) argues that copyright law in the US has become one of the best defences against revenge porn.

Going the copyright route means that the victim of revenge porn would file a takedown notice requiring the website concerned to immediately take down all infringing image(s) and/or video(s) pursuant to the Digital Millennium Copyright Act (DMCA). However, even with the copyright route, there’s a catch as the article explains:-

“The copyright approach is not foolproof, unfortunately: While large corporations like Reddit respond to them quickly, irreverent upstarts like Hunter Moore’s infamous Is Anyone Up may ignore takedown notices or, worse, publicize the victim’s image further in an attempt to shut her up. (Victims then have to contract lawyers for expensive, indeterminable lawsuits.) Copyright only applies when the victim took the photo herself.”

In this regard, it may be argued that the minimum legal parameters for social media use are largely under-developed in Africa. Law-makers, courts and administrative bodies appear to be applying the same analogue rules and principles in the digital realm, without due regard to the specificities and intricacies of new media, and social media in particular. Therefore there is a need for careful study and review of our existing laws to ensure that they adequately regulate conduct on social media.

“In today’s world, the most effective, efficient and immediate way of conveying one’s ideas and thoughts is via the internet. At the same time the internet reaches out to millions of people instantaneously. The possibility of defamatory [facebook] postings on the internet would therefore pose a significant risk to the reputational integrity of individuals.” – Chetty J. at para 28.

This blogger has come across the recent judgment of M v. B [2014] ZAKZPHC 49 in which M was seeking confirmation of an interim order that B remove all defamatory statements from her facebook page and refrain from in any way making, publishing and/or distributing defamatory statements about M. A copy of the judgment is available here.

Chetty J. sitting in the High Court confirmed the first part of the interim order relating to the removal of the offending statement but declined to confirm the second part of the order which refrained B from in any way making, publishing and/or distributing defamatory statements about M. However, the court ordered B to pay the legal costs of M’s Pietermaritzburg High Court application.

This blogpost discusses the court’s findings in this case and other similar cases relating to defamation via facebook. It is against this South African backdrop that we consider the on-going debate around the “Dead Beat Kenya” Facebook page in Kenya and the possible outcome of defamation suits filed against the administrator of the page.

In the present case, M and B are the parents of a 5-year-old daughter, born out of wedlock, who lives with the mother, B. However the father, M, a Durban businessman, has contact with his daughter every alternate weekend from Friday afternoon until Sunday afternoon. During one such weekend, M admitted that his daughter and him visited the house of a friend, and ended up staying over. During the course of the evening, other friends gathered at the house eventually resulting in M’s daughter sharing a bed with an adult female, who is a pre-primary school teacher, and someone known to M’s daughter as she had babysat her on previous occasions. M safely returned his daughter to B on Sunday.

In the week that followed, M claims that he received calls from several friends drawing his attention to a posting by B on Facebook, under the heading “DEBATE”. The posting reads as follows:

“DEBATE: your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about six adults) go jolling and your ex’s drunk, 50 yr old girl “friend” ends up sleeping with your daughter cause he doesn’t want his girl “friend” sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?”

At the time of the above post, B had 592 “Facebook friends” and a number of the respondent’s ‘friends’ responded to her posting and were critical of M’s behaviour. M also alleges that B further contributed towards the debate by making subsequent postings in reply on this posting.

M regarded these facebook posts as defamatory and detrimental to his business reputation and engaged attorneys, who wrote to B clarifying that during the weekend in which M had access to their daughter, at no time therein was their child placed in any danger, nor was her safety compromised in any way. M’s attorneys then called upon the B to remove the offending postings from her Facebook page by the close of business, failing which they threatened litigation.

B claims to have complied with the attorney’s notice however at the time when the application for urgent relief was launched, M contended that the “remnants” of that debate lingered on the respondent’s Facebook wall. In particular, B made several postings directed at her own brother SB who it would appear, did not take kindly to the insinuations of neglect aimed at M:

“This is my FB page which I can get opinions on matters close to my heart, if you don’t like it then go read someone else’s and defriend me!”

“I have Every right to know who ends up looking after / sleeping with my daughter. Completely different situation [SB] get real please. Looking after a child during school hours or afternoon is different to a night time, when alcohol and drugs are involved!!”

Given the reference to the use of drugs, M contended that he had a prima facie right to approach the Court to ensure that his reputation was not further harmed and that he should not be subjected to defamatory statements being posted by B. M considered the postings to be harmful to him as a father, but also that it could have a detrimental impact on his business reputation and character.

In confirming the first part of the interim orders in favour of M, the court found as follows:-

“Other than a denial that the postings were defamatory, the respondent does not make out any argument of the public interest in respect of the statements attributed to the applicant. I am satisfied that the applicant was entitled to approach the Court on an urgent basis at the time that he did.”

This judgment confirms an earlier South African case, H v. W, which dealt with defamation on facebook.

The second part of the interim orders in the present case was more contentious as M sought confirmation of an order against B from publishing or distributing any defamatory statements about M beyond the social network platforms to printed media or any other form of publication. In essence, M contended that the Court should have regard to B’s prior conduct, and in light thereof, this order was necessary in order to protect his reputation into the future. The court disagreed on three main grounds.

Firstly, the court was not convinced that the order sought could be likened to the protection orders provided under the South African Domestic Violence Act despite the domestic relationship between M and B. Secondly, the court rejected M’s argument that by granting the order, it would be an easier task for the applicant to approach the Court on the basis of contempt rather than having to traverse the entire background or history of his relationship with the respondent.

In this connection, the court agreed with B that there was no basis at common law for a Court to curtail B in respect of material which is not as yet known to the Court, nor has it been presented or published. As such, the Court is asked to speculate on what could constitute a defamatory statement, uttered or published by B against M. In the court’s view, even if the statement in the future by B is defamatory of M, it is equally so that not every defamatory statement is per se actionable in that B may have a good defence to its publication, such as legal duty, qualified privilege, fair comment on facts that are true and in matters of public interest as well as in circumstances where it is reasonably necessary for and relevant to the defence of one’s character or reputation.

Finally, the court rightly considered the right to freedom of expression enshrined in Section 16 of the South African Constitution, although the parties had not made any arguments based on section 16. In this regard, the court found that the order sought by M would be a drastic limitation and restraint on the B’s freedom of expression.

In the Kenyan context, media outlets have been abuzz with reports (see for instance here and here) about a facebook group called “Dead Beat Kenya” that names and shames absentee parents who fail to support their children. Jackson Njeru, the founder and the administrator of the page, claims that before he posts anything on the page he asks the person making the accusation to provide evidence such as a birth certificate or any communication between the two parties. He also calls the accused and gives them a chance to defend themselves.

In the regard, Njeru states:

“We call both parties. It’s a challenge to verify (…) But I remind people that they’ll be sued for defamation if they make false accusations.”

As we know, defamation is the act of harming the reputation of another by making a false statement to a third person. A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided. Therefore under Kenyan law, a plaintiff in a defamation case must prove that the words were spoken/written; that those words refer to him/her; that those words are false; that the words are defamatory or libellous and that he/she suffered injury as a result, that is, his/her reputation was injured as a result.
Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed, which could easily include the facebook posts made on the Dead Beat Kenya page.

The tort of defamation has specific defences available to a defendant. These include justification, truth, privilege and fair comment. The burden of proof shifts to a defendant to prove any of these defences in line with the phrase “he who alleges must prove”. The defendant must prove that the defamatory matter is substantially true for the defence of justification. For a defendant to rely on qualified privilege he/she must prove that the subject matter and its context was in advance of public interest or that the words were a fair comment on a matter.

From a constitutional perspective, it is clear that any law of defamation is a restriction on freedom of speech in the interest of other rights worthy of protection. Therefore, in cases of defamation, courts are called upon to strike a balance between the protection of the right to dignity, right to privacy and the right of freedom of expression.

We will wait to see how this “Dead Beat Kenya” case plays out in the weeks and months ahead.

“It could be said that Copyright seeks to protect the author’s actual expression and not the ideas, and it does not therefore forbid independent creation. As such, the claim that the two parties in this suit had an idea on tele-healthcare, but which they expressed differently is not untenable in law.” – Gikonyo J. at page 7.

In a recent ruling by the High Court in the case of Dedan Maina Warui & another v Safaricom Limited [2014] eKLR, a medical doctor was denied a temporary injunction and an order of delivery up with respect to a health-related product launched by Safaricom. A copy of the ruling is available here.

Dr. Dedan Maina Warui claims that Safaricom infringed its copyright in a concept styled under the name “Med Dispenser” which the doctor pitched to the leading mobile network operator’s Enterprise Business Unit on or about March 2011. To prove ownership of the copyright in the concept, the doctor presented a certificate of registration No. CR 000712 dated 8th March, 2011 whereby the Med Dispenser was registered as a Literary Work number KCB 0712 by the Kenya Copyright Board. The literary work in question is a concept paper containing the work flow, methodology or the process in which the med dispenser innovation would work once deduced into a software program.

Safaricom admitted that it did give some initial consideration to the Warui’s proposal, but however made a decision to proceed with a separate proposal which involved a partnership with AAR and Cisco Systems Inc. (Cisco’s system is featured in video featured above) to launch the Tele-health product which was developed without any reference to the Warui’s innovation or ideas. Safaricom claims that the electronic medical prescription concept upon which it’s “Health Presence” product is built, has been in use in other jurisdiction, namely India, since May 2010 and was therefore not an original idea of Warui as claimed.

The learned Gikonyo J. appears to have rendered a fair ruling in this case avoiding the error made by his brother Havelock J. in the case of Faulu Kenya Deposit Taking Microfinance Limited v Safaricom Limited [2012]eKLR where the latter stated that a concept paper does not fall within any of the existing categories of copyright works (See our analysis of Havelock and his ruling here).

In October 2011, a media report published here by our good friends over at CIO East Africa announces that Cisco, Deaf Aid and Safaricom formally piloted the first Cisco HealthPresence clinic in Kenya. The article reads in part:

“This first implementation of Cisco’s HealthPresence solution in Kenya demonstrated how technology can transform the delivery of healthcare to underserved, remote, and rural areas. Bandwidth connectivity was provided by Safaricom, the leading provider of converged communication solutions in Kenya.”

In the same month, Warui claims he saw the above article titled: “Tele-medicine: Treating patients from a distance” published by the Standard newspaper on October 23, 2012. The article reads in part:

“Safaricom Health Presence is a product that will use tele-presence to deliver health services to patients, with the doctor giving instructions to the patients or nurse, on what to do, and what medicine to prescribe. (…) Speaking at the launch of the product, Safaricom CEO, Bob Collymore noted that the adoption of tele-medicine would help address the gnawing question of the skewed doctor to patient ratio. He [Collymore] noted: ‘With this technology, all a doctor needs is a computer or a tablet to treat a patient. The product aims at widening reach of quality healthcare in the country’.”

Warui further claims that Safaricom made a business presentation in January 2013 on its “Health Presence Solution” to the Pharmaceutical Society of Kenya. In light of these two claims, Warui alleges that these products by Safaricom were based on his work which formed the core of his proposal registered as a literary work with KECOBO.

While the court rightly agrees with Warui that his concept paper was copyrightable, the ruling is cautious to note that from the evidence adduced by Warui, it is not clear which exclusive rights in the Concept Paper Warui is alleging to have been breached by Safaricom. Therefore the court makes the correct judgment call by stating as follows:-

“…In the absence of oral evidence which can be tested by way of cross examination, it would be difficult to ascertain whether the Defendant [Safaricom] has infringed on any intellectual property rights of the Plaintiff [Warui] in the Med Dispenser innovation by introducing the Safaricom Health Care Presence platform in conjunction with Cisco Limited. From the material before the Court, the Plaintiffs did not quite navigate the mix in this matter arising from the circumstances of the case, and thus, did not establish a prima facie case with a probability of success. The upshot is that the application before the court fails. However, the suit should be set down for hearing on a priority basis so that the substantive issues which are of great significance in the field of intellectual property law are resolved once and for all.”

This blogger recently came across a touching tribute (see here) to a fellow Kenyan blogger, Idd Salim, who passed away one year ago this month. Although he is fondly remembered for his hard-hitting blog articles on the technology and telecommunications industries in Kenya, these articles are no longer available because his blog domain has since expired: http://www.iddsalim.com/blog/

From an intellectual property (IP) perspective, this blogger is clear that all Idd Salim’s literary and artistic works online would remain protected under copyright until the year 2064. However there is a more fundamental question, which this blogpost asks namely, how should succession lawyers in Kenya advise their clients on their ‘digital assets’ when they die?

What ‘digital assets’? Any accounts that you open online, including email, social networking, photo-sharing, as well as websites and domain names you own.

The law of succession (governed principally by the Law of Succession Act Cap 160 Laws of Kenya ) is the branch of law dealing with inheritance i.e. the transmission of ownership of property from the dead to the living or the transfer of property rights from the dead to the living which is founded on the fact that a dead person cannot possibly own property because he or she cannot enjoy the rights and benefits accruing from property. Therefore following the death of the owner of property, rights over such property have got to be passed on to those who survive him or her.

But what it appears that “online” property? With so many of us emailing, blogging, tweeting, facebooking, eBaying and otherwise living online, it is clear that a huge portion of ourselves resides on the web. The fact is the average person has a handful of websites and email addresses to their name, not to mention domain names, LinkedIn, Flickr and other online accounts.

In cases of testate succession, the deceased has made written arrangements for the disposal of his property, in a will or a testament. Therefore the only necessary addition is to ensure that account names, usernames and corresponding passwords are provided along with instructions on the administration of these online accounts.

In the case of real and personal property, administration entails essentially the collection and preservation of all the assets, interests and benefits which make up the Estate of a dead person. Where the administrator or personal representative is appointed by the court, s/he is known as an administrator but where he is appointed under a will, s/he is called the Executor.

In the case of social media, the digital administrator/executor would take over the accounts of the deceased in order to execute the latter’s wishes on what accounts stay open, get transferred to someone else or get deleted forever.

In the case of intestate succession where a social media user dies without having made a will or having made a will that is invalid, the principle remains the same but different rules may apply. In Kenya, the rules of intestacy determine that only blood relations of the deceased person are entitled to inherit as opposed to testate succession where anybody can inherit.

Therefore the online executor(s) in the case of intestacy must sit down and come up with a list of all the websites and online accounts owned by the deceased. In the case of domain names, the digital executor will have to decide whether or not the domain(s) will be renewed and how will associated costs be financed. When the executor decides that certain or all social media accounts should be permanently deleted, there are specific rules and policies that would be applicable. Most social media accounts require that the executor submits proof of death, most likely in the form of a death certificate issued by the relevant national authorities.

“It is obvious to me that where the issue of copyright is contested, the Police, the DPP and the Copyright Board cannot convert themselves into the High Court, settle that issue and declare that the 1st Petitioner has violated any part of the Copyright Act. Their actions are premature, malicious and unlawful and that is what is called abuse of Court process to settle personal scores and this Court cannot sit idly and watch them do so.” – Lenaola J., at para 48.

The above passage is taken from a recent High Court judgment delivered in the case of Peter Gichuki Mwangi & 2 others v Copyright Board of Kenya & 3 others [2014] eKLR. A copy of this judgment is available here. In this case, the copyright (and trade mark) subject matter in dispute was several popular school books published under the title “High Flyer Series”. As the story goes, Peter Gichuki Mwangi (1st Petitioner) and Anthony Kiai (4th Respondent) were once business partners and together they run the publishing house responsible for the books, High Flyer Publishers Ltd. Upon disagreements arising between the two partners, Kiai moved to court for determination of the issue of copyright ownership in the on-going case of HCCC No. 45 of 2011 and unsuccessfully sought injunctive orders from the court pending the hearing and determination of that case. In addition, the court declined to grant Kiai’s prayer for Anton Piller orders. In the instant case, Lenaola J. notes that it was only after failing to obtain the above orders and others, including specifically the Anton Piller orders to search the premises and seize evidence without warning, that Kiai enlisted the support of the Kenya Copyright Board (KECOBO) in storming certain premises where Mwangi was publishing some of the books whose copyright remains contested. Another noteworthy point is that prior to these enforcement actions by KECOBO, the case HCCC 107 of 2013 had already been filed relating to the same disputed copyright works and it was pending determination.

In light of the above, the court held that whereas KECOBO and the DPP have certain statutory and Constitutional mandates which they are lawfully entitled to exercise in the context of the law, the actions taken against Mwangi and the other Petitioners were an abuse of Court process. The learned court also held that since the issue of breach of copyright is still being contested in the High Court, that issue should be settled before a decision whether any party may be guilty of such breach can be addressed. Therefore the court made the following order:-

“An order do issue that the 1st Respondent [KECOBO] and 2nd Respondent [DPP]’s decision to charge the Petitioners in Criminal Cases Nos. 224, 225 and 295 of 2013 together with any charges presented to the 3rd Respondent be stayed pending the final determination of HCCC No. 45 of 2011 as to the lawful or legal owner of the copyright in relation to HIGH FLYER SERIES.”

Comment:

This judgment epitomizes the transformation currently taking place within the Judiciary of Kenya (highlighted elsewhere by this blogger). While the judicial branch respects that state organs have a certain amount of discretion in the exercise of their statutory and constitutional duties, this discretion should not be exercised arbitrarily, oppressively or contrary to public policy. In the present case, the court is convinced that ‘it is an abuse of criminal process for a person to launch criminal proceedings against the other, in civil matters which are genuinely disputed on substantial grounds by that other person and the civil dispute cannot be reasonably ventilated and decided with a fair finality in the criminal process.’

In its hard-hitting judgment, the court notes:

“Instead of pursuing an appeal against those orders [in HCCC 45 of 2013] or seeking a review thereof or pursuing the civil suit to conclusion, the 4th Respondent [Kiai] enlisted the help of the Copyright Board of Kenya and the Kenya Police to achieve that which he had failed to achieve at the High Court. The result of his efforts was the arrest of the Petitioners [Mwangi and others] and their arraignment in Court. One of the policies jealously guarded by the Courts is the need to ensure that there is no abuse of court process to harass, intimidate and coerce another party to settle a purely civil matter.”

In recent years, the criminal enforcement of copyright infringement both at the instance of either KECOBO and/or collecting societies has become a controversial issue with members of the public complaining of harassment, corruption and malice (See a recent report here). In the present case, KECOBO relied on Section 193A of the Criminal Procedure Code which provides that “the fact that any matter in issue in any criminal proceedings is also in directly or substantially in issue in any civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.” However, along comes the learned Lenaola J. who appreciates the existence of this express provision of the Criminal Code but still finds fault in KECOBO’s enforcement action. The court has not set an important precedent that any exercise of discretion in the performance of statutory and/or constitutional functions by KECOBO is subject to review by the High Court.